SUPERIOR COURT OF ARIZONA: CASE NUMBER: CV 2007-010799
PLAINTIFFS: Lauretta & Michael M*****
DEFENDANTS: Desert Palm Surgical Group, Michelle L. Cabret-Carlotti, Albert E. Carlotti, III
VERDICT & RULING: JUDGE RULED IN FAVOR OF THE PATIENT
PLAINTIFFS AWARDED JUDGEMENT against Defendants DPGS; MICHELLE L. CABRET-CARLOTTI; and ALBERT E. Carlotti, III as follows:
1. The "Financial Agreement" signed by Plaintiff is hereby declared to be unenforceable
2. DEFENDANTS ORDERED TO IMMEDIATELY RETURN $24,050 prepayment to Plaintiff
3. Plaintiff is AWARDED of prejudgment interest at the rate of ten percent per annum on the $24,050 from the date the Plaintiff cancelled the scheduled procedure on January 2, 2007
4. Plaintiff are AWARDED THEIR ATTORNEY FEES and ASSOCIATE EXPENSES INCURRED IN THIS MATTER from the date Plaintiff cancelled the scheduled procedure, in the amount of$47,889.77
GENERAL ALLEGATIONS
6. Desert Palm Surgical Group (DPSG) provides maxillofacial and cosmetic surgery services in addition to various skin care services such as, but no limited to, chemical peels, microdermabrasion and facial massage. THE CARLOTTIS AT ALL TIMES RELEVANT TO THIS COMPLAINT HELD THEMSELVES OUT AS HAVING EXPERTISE IN RECONSTRUTIVE, AND COSMETIC FACIAL AND BODY SURGERY.
7. Ms. M***** went to DPSG in late 2004 or early 2005 for skin care services, including microdermabrasion
8. In November 2005, Ms. M***** made an appointment with Dr. CABRET-CARLOTTI to discuss possible surgery involving her neck area. At this consultation, Dr. CABRET-CARLOTTI RECOMMENDED that the Ms. M***** undergo an ENDOSCOPIC BROWLIFT, an UPPER LID BLEPHAROPLASTY, FACE and NECK LIFT, TCA PEEL and CHEEK IMPLANTS for a total of $16,672.50
9. Ms. M***** considered procedures and decided not to have them done
10. About a year later, Ms. M***** again consulted with Dr. CABRET-CARLOTTI, who RECOMMENDED that, in ADDITION to the above services, to also undergo a PERIORBITAL LASER and LIPOSCULPTURE of her BACK, FLANKS and ABDOMEN, for a total price of $24,300
11. Ms. M***** discussed the RECOMMENDED surgical procedures with her husband and he becameCONCERNED about the EXTENT of the PROCEDURES and the CARLOTTIS EXPERIENCE and TRANING
12. In December 2006 both Ms. M***** and Mr. M***** went to Desert Palm Surgical Group ((Now called Carlotti Cosmetic Surgery Center)) for an appointment with DEFENDANT CABRET-CARLOTTI
13. At this visit, Mr. M*****, who wasCONCERNED about DEFENDANT CABRET-CARLOTTIS QUALIFICATIONS and EXPERIENCE, asked Dr. CABRET-CARLOTTI about her PLASTIC SURGERY EXPERIENCE and her EXPERTISE IN THESE TYPES OF PROCEDURES
14. DEFENDANT CABRET-CARLOTTIRESPONDED THAT SHE HAD BEEN A SURGEON FOR MORE THAN 20 YEARS AND THAT SHE DOES THESE TYPES OF PROCEDURES"ALL THE TIME"
15. Mr. M***** also told DEFENDANT CABRET-CARLOTTI that he had heard there were TWO TYPES of PLASTIC SURGEONS, ones with SURGICAL TRAINING that COULD PERFORM SURGERIES in a HOSPTIAL and OTHERS WITH LIMITED TRANING that could PERFORM PLASTIC SURGERY in an office setting, and he wanted to make sure that she was not the latter
16. DEFENDANT CABRET-CARLOTTIANSWERED THESE QUESTIONS and MADE OTHER STATEMENTS, all of which lead the M******s to BELIEVE THAT DEFENDANT CABRET-CARLOTTI WAS "CERTIFIED" TO PERFORM PLASTIC/COSMETIC SURGERY, THAT SHE HAD THE HIGHEST LEVEL OF TRAINING POSSIBLE, and THAT SHE HAD MORE THAN 20 YEARS EXPERIENCE WITH THESE TYPES OF PROCEDURES
17. The M******s justifiably relied on the representations by DEFENDANT CABRET-CARLOTTI in agreeing that Ms. M***** would go forward with the surgery. Patient, who already paid some deposits, then paid the balance of $23,000-plus on or about December 12, 2006
18. Pursuant to DPSGs written Financial Agreement, patients undergoing cosmetic surgery were required to prepay the entire price three weeks prior to the surgery. The Financial Agreement stated, "This payment is also non-refundable, but it is transferable to a later date for up to six months if your surgery is cancelled due to documented personal medical emergency only. If your surgical procedure needs to be rescheduled within two weeks prior to your scheduled date you will be required to pay a non-refundable rebooking fee. There will be no exceptions made" A true and correct copy of the Financial Agreement is attached as Exhibit "A."
19. Ms. M******s surgery was scheduled for January 18, 2007
20. Upon information and belief, the principle surgeon was to be ALBERT CARLOTTI, III, M.D., whom the M******s had never met
21. Ms. M***** then learned from discussions with others that the DEFENDANTS CARLOTTIS were NOT BOARD CERTFIFIED PLASTIC SURGEONS, that CABRET-CARLOTTI did NOT have 20 years experience (and had not even graduated from medical school until 1999), that BOTH DOCTORS were PRIMARILY DENTAL and MAXILLOFACIAL SURGEONS, and that MOST BOARD-CERTIFIED PLASTIC SURGEONS WOULD NOT BE WILLING TO PERFOM ALL OF THE PROCEDURES RECOMMENDED BY DEFENDANT CABRET-CARLOTTI IN ONE SURGICAL SESSION
22. The M******s also later discovered that DEFENDANTS CABRET-CARLOTTI and CARLOTTI DO NOT HAVE THE TYPE OR LENGTH OF TRAINING NECESSARY TO BE ELIGIBLE TO BECOME BOARD-CERTIFED PLASTIC SURGEONS
23. Upon information and belief,NEITHER OF THE CARLOTTIS HAD PRIVELEGES TO PERFORM TRADITIONAL PLASTIC OR COSMETIC SURGERY (such as a facelift) IN A HOSPITAL
24. Upon Learning this, Ms. M***** called DPSG on January 2, 2007 to cancel her surgery
25. During the January 2, 2007 telephone conversation, Ms. M***** was told that her payment would ONLY be refunded if she produced a doctors note providing a medical reason for canceling the surgery
26. Ms. M******s physician sent a letter to the Defendants stat that, for various reasons stated in the letter, "IT WOULD BE ILL ADVISED TO PROCEED WITH ANY ELECTIVE SURGERY AT THIS TIME."
27. Desert Palm REFUSED to return the prepayments
28. ARIZONA PROHIBITS PHYSICANS FROM OBTAINING A FEE BY FRAUD, DECEIT OR MISREPRESENTATION. Moreover, it is UNPROFESSIONAL CONDUCT for a physician to represent or hold oneself out as being a medical specialist when such is not a fact
COUNT ONE: FRAUD/FRAUDULENT INDUCEMENT
30. For purpose of inducing Patient to pay the balance of more than $23,000, DEFENDANT CABRET-CARLOTTI FALSLY REPRESENTED TO THE M******s that SHE HAD MORE THAN 20 YEARS OF EXPERIENCE PERFORMING THESE TYPES OF SURGERIES, THAT SHE HAD THE HIGHEST LEVEL OF TRANING IN THE INDUSTRY, and that SHE WAS PRIVILEDGED TO PERFORM PLASTIC SURGERIES IN A HOSPITAL SETTING
31. CABRET-CARLOTTI knew that her representations regarding her experience, her training and her privileges were FALSE. Alternately, she made FALSE REPRESENTATIONS RECKELSSLY and WITHOUT REGARD FOR THEIR TRUTH OR FALSITY
32. CABRET-CARLOTTI intended that the M******s RELY ON HER FALSE REPRESENTATIONS, and they did so, in the manner contemplated or intended by Cabret-Carlotti, by paying the $23,000-plus balance remaining for the RECOMMENDED SURGERY
33. The M******s were ignorant to theFALSITY of DEFENDANT CABRET-CARLOTTIS REPRESENTATIONS, and their reliance thereon was reasonable in the circumstances
34. As a DIRECT and PROXIMATE RESULTS of DEFENDANT CABRET-CARLOTTIS FRAUDULENT REPRESENTATIONS, the M******s have incurred and paid other amounts, including (but not limited to) the attorneys' fees, costs and other expenses incurred.
35. By DEFRAUDING the M******s,DEFENDANTS ACTED WITH THE INTENT TO INJURE THEM or, alternatively, CONCIOUSLY DISREGARD THE RISK THAT THEIR ACTIONS WERE LIKELY TO CAUSE SUBSTANTIAL HARM TO THE M******s. In the circumstances, the M******s may be entitled to recover punitive damages from the Defendants.
COUNT TWO: CONSUMER FRAUD UNDER A.R.S. 44-1521 et seq
38. DEFENDANT CABRET-CARLOTTIverbally used DECEPTION, FRAUD, MISREPRESENTATION and/or CONCEALMENT, SUPRESSION or OMISSION of material facts with the intent that the M******s rely upon such, in an attempt to induce the M******s to pay for Desert Palms surgical services.
39. By their acts and/or omission alleged herin, DEFENDANTS VIOLATED THE ARIZONA CONUSMER FRAUD ACT
40. DEFENDANT CABRET-CARLOTTI intended that the M******s rely upon herDECEPTION, FRAUD, MISREPRESENTATION and/or CONCEALMENT, SUPRESSION or CONCEALMENT of MATERIAL FACTS, and the M******s did so in the manner contemplated or intended by the DEFENDANTS, by paying the surgery price of approximately $25,000